Human Resource and Management Services by sofiaie


									                                                                                  Human Resource
                                                                          and Management Services
                                                                    April 2008

                               HUMAN RESOURCE EXCHANGE
                                       Human resource issues and topics impacting employers

               “The 10 "most overpaid" jobs”                               The jury found that the companies operated as an integrated
… In his article, "The 10 Most Overpaid U.S. Jobs and the                  enterprise and that their owner and manager sexually harassed
Little Effort They Require," Chris Pummer … notes the                      the teenager and other women he supervised. The jury
following jobs:                                                            apportioned $30,000 of the award for compensatory damages
                                                                           to the teenage victim and an additional award to her of
     1)     Mutual fund managers                                           $75,000 for punitive damages.
     2)     Washed-up pro athletes in long-term contracts
     3)     CEOs of poorly performing companies                            … The EEOC’s lawsuit (Civil Action No. H-06-3004 in U.S.
     4)     Orthodontists                                                  District Court for the Southern District of Texas, Houston
     5)     Motivational speakers and ex-politicians on the                Division) charged the owner with egregious misconduct and
            lecture circuit                                                presented evidence at trial that the young female victim had
     6)     Real estate agents selling high-end homes                      been inappropriately touched by Nazir Ali, the company’s
     7)     Skycaps at major airports                                      male owner, who besieged her with his offensive remarks,
     8)     West Coast longshoremen                                        and kept her against her will during a long car ride while he
     9)     Major airline pilots                                           graphically described his sexual appetites and intent to have
     10)    Wedding photographers                                          sex with her against her will.

                   ♦ FROM SHRM ♦                                                            ♦ FROM HR MAGAZINE ♦
  “Employee’s care of grandparents not always covered                                              “Office mating”
                     under FMLA”                                           According to a survey by, an online career center,
Q: We have an employee seeking time off to care for a                      47% surveyed had been involved in an office romance, and
   grandparent who has a serious health condition. Does                    another 19% would consider it. Of those individuals who had
   FMLA leave cover care-giving for a grandparent?                         a romance, 11% had dated their bosses or another superior.
A: The FMLA itself defines the term “parent” as the                        20% of those who had an office romance admitted to having a
   biological parent of an employee or an individual who                   physical tryst in the office.
   stood “in loco parentis” to an employee when the
   employee was a minor.                                                                     ♦ FROM HR INSIGHT ♦
                                                                                 “Reward (and record) employees’ performance”
     FMLA does not protect a leave of absence to provide                   … Written evaluations become critical evidence in most
     care for grandparents unless the employee is able to                  employment discrimination cases. … In 2006, the U.S.
     demonstrate that the grandparent stood in loco parentis.              Supreme Court expanded the scope of retaliation claims. An
     The regulations define in loco parentis as having had the             individual “must show that a reasonable employee would
     responsibility of providing day-to-day care to the                    have found the challenged action materially adverse, which in
     employee as well as for financially supporting the                    this context means it well might have ‘dissuaded a reasonable
     employee in his or her childhood. FMLA does not                       worker from making or supporting a charge of
     require a legal or biological relationship to establish in            discrimination.’”
     loco parentis. As a result, unless the employee is able to
     demonstrate that the grandparent stood in loco parentis,              (Editor’s note – what this means is that a performance review,
     the leave is not covered by FMLA.                                     especially if it’s not a good evaluation, could be interpreted by an
                                                                           employee that he/she was given a poor evaluation because of a
                                                                           recent workers’ compensation absence, whistleblowing incident, or
              ♦ FROM EEOC WEBSITE ♦                                        because he/she filed a harassment claim, regardless as to whether it
  “Jury awards $110,000 against dry cleaners for sexual                    turned out to be valid or not. This is another example of how, in the
                harassment of a teenager”                                  overall scheme of things, employment laws do not necessarily
… The EEOC had charged that the owner of Bellair Cleaners,                 change that often, but the interpretations of those laws certainly
Inc., doing business as Park Avenue Cleaners, Bellair                      change in their focus.)
Cleaners, and Your Valet (Park Avenue Cleaners), harassed a
female employee, then aged 19, and other women.
28723 IH-10W, Boerne, Texas 78006                   Phone: 830/981-8723                    Fax: 830/755-8731                   email:
                    ♦ FROM HR HERO ♦                                                         ♦ FROM HR&M ♦
               “Truth is stranger than fiction”                                             “New FMLA poster”
 In the truth is stranger than fiction category, a recently re-         The FMLA was changed by Congress in late January 2008,
 discovered case showed that a Hooter’s waitress in Florida             and the DOL is currently working on updating the regulations
 sued her employer for tricking her about a prize in a beer-            to address the new provisions. The new poster will be revised
 selling contest. The waitress thought she would win a                  and will be available in the near future once the new
 Toyota if she sold the most beer. However, after she won               regulations are issued.        Until then, please go to
 the contest, her manager blind-folded her; led her to the              for    the
 parking lot; and presented her with a plastic “toy Yoda”               revised and free poster.
 character from Star Wars. The manager claimed the prank
 was an April Fool’s joke. Funny, right? Apparently, the                                    FEATURED SERVICE
 employee didn’t think so – she sued her employer, a                                           EEOC Charges
 Hooter’s franchisee, for breach of contract and fraudulent
 misrepresentation.                                                     An organization receives a notice from EEOC that an
                                                                        employee or ex-employee has filed a charge of discrimination
              ♦ A REAL LIFE SITUATION ♦                                 based on sex, race, or any other protected category.
Situation: A 29-year employee, age 66, had continuously
been a marginal performer. Through her 29 years, she had                The organization gets in touch with its attorney and the
been under several supervisors, all of which mentioned                  attorney then decides to either mediate or file a written
performance deficiencies in her annual evaluations, however,            response to the charge.
her overall ratings were always satisfactory.
                                                                        Immediate thoughts: Why? Why does the organization feel
With the latest supervisor, he saw the same performance                 that the attorney is the only one that can respond to an EEOC
deficiencies and he saw the notations in her past evaluations           charge? If the organization is big enough to have an HR
that identified those deficiencies, but he also wondered why            professional on staff, why can’t the HR professional respond
she received overall satisfactory ratings. He also wondered             to the charge?
why she had not been fired in the past.
                                                                        HR&M has been involved in mediation and in filing written
As he was noting her performance and advising her that her              responses to EEOC charges for 20 years. In those years,
performance was not acceptable, he told her that if she did not         HR&M has helped HR professionals work on the responses so
improve to the level that was expected, that she would be               that they can respond to any future claims. HR&M has also
jeopardizing her position.                                              taken the full responsibility of responding to EEOC charges
                                                                        when the organization did not have an HR professional on
Upon hearing this, she told her supervisor “Look, I’ve been             staff.
here 29 years and you haven’t even been here 29 weeks. If
you think you’re going to fire me, go ahead and try it. We’ll           Attorney involvement is not necessary. You can do it.
see who gets fired!”                                                    HR&M can help step you through it successfully.

Observation: Wow!!! Who’s in control here? And if the
supervisor takes and re-gains control, he may wind up losing                      ♦ REMEMBER! WE CAN HELP!! ♦
anyway. How? Why? Because the company has allowed her
poor performance, ergo, it is acceptable. Too much time has             Consulting on performance, attendance, FMLA, Wage &
elapsed and too many supervisors have come and gone so that             Hour, management accountability, and other unique issues is
if a good paper trail is in place, it will probably be looked at        just one of the areas of our expertise.
as the paper trail was purposefully initiated to get her out of
the company because of her age.                                         We also provide:
                                                                               supervisory/management training, ranging from
Although this space is too small to list all of the various                    brown bag luncheon training to ½ or full day sessions
options available, the one that comes to mind is “You bought                   employee handbook development
her years ago. Live with it.” Simply put, the company has                      responses     to   discrimination     charges      and
indeed allowed this type of behavior and performance to                        unemployment claims
continue, and now, to do something about it at her age will                    on-line performance review forms and processes
definitely be a significant obstacle to overcome. The                          guidance and consultation on coaching, counseling,
company can still require certain expectations and can still                   and disciplining in employee relations matters
coach and counsel her. But to eventually get to the point of                   succession and strategic planning programs
firing her is going to be highly problematic.                                  consultation on issues regarding attendance and
                                                                               performance and guidance on terminations
Bottom line, the new supervisor is having to pay for the                       development of OFCCP compliant Affirmative
company’s failure to take action on an employee. This                          Action Plans
happens way too many times.

28723 IH-10W, Boerne, Texas 78006                 Phone: 830/981-8723                 Fax: 830/755-8731               email:

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